Skip to Main Content

Mark Allison Quoted in Tax Notes, Practitioners Parse Promoters' Wins in Sale-Leaseback Tenant Improvements Transaction

February 12, 2013, Tax Notes
Excerpt taken from the article.

The acquittal and a finding of not guilty for two former practitioners who participated in an alleged sale-leaseback tax shelter highlight the difficulty the government had in proving a substantive tax crime and generally show the risks for practitioners in designing and defending the same transaction, according to members of the defense bar.


Mark D. Allison of Caplin & Drysdale said he sees the government's prosecution of the case as based on "the alleged coverup rather than the substantive act itself." The criminal prosecutions stemming from tax shelter cases in recent memory, like in the son-of-BOSS contact, involve individuals' roles in the subsequent audit of the taxpayer, he said, adding, "I got the sense...that the focus of the government was on what was said during the audit and any alleged misrepresentations about the transaction."

"The flavor of this seems to be that the IRS was annoyed that there was not more forthrightness in the audit from the same people who happened to also be involved in the transaction," Allison said. He said that leads the IRS to believe that if a practitioner is misrepresenting the facts in the audit, the practitioner is also misrepresenting the facts in the underlying transaction.

This is "really a cautionary tale of the dangers of trying to defend yourself of your own transaction, because you're walking this fine line between being a representative...and being the fact witness," Allison said. The taxpayer's representative in an audit "really should not be the person who is involved in the underlying transaction," he said, adding, "You want distance between the fact witness and your independent representative."

Please click the above PDF to view the complete article by Shamik Trivedi.

About Caplin & Drysdale
Celebrating our 55th Anniversary in 2019, Caplin & Drysdale continues to be a leading provider of legal services to corporations, individuals, and nonprofits throughout the United States and around the world. We are also privileged to serve as legal advisors to accounting firms, financial institutions, law firms, and other professional services organizations.

The firm's reputation over the years has earned us the trust and respect of clients, industry peers, and government agencies. Moreover, clients rely on our broad knowledge of the law and our keen insights into their business concerns and personal interests. Our lawyers' strong tactical and problem-solving skills -- combined with substantial experience handling a variety of complex, high stakes, matters in a boutique environment -- make us one the nation's most distinctive law firms.

With offices in New York City and Washington, D.C., Caplin & Drysdale's core practice areas include:
For more information, please visit us at
Washington, DC Office:
One Thomas Circle NW
Suite 1100
Washington, DC 20005
New York, NY Office:
295 Madison Avenue
12th Floor
New York, NY 10017


This communication does not provide legal advice, nor does it create an attorney-client relationship with you or any other reader. If you require legal guidance in any specific situation, you should engage a qualified lawyer for that purpose. Prior results do not guarantee a similar outcome.

Attorney Advertising
It is possible that under the laws, rules, or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation.
©2021 Caplin & Drysdale, Chartered
All Rights Reserved.